Should be, and now is …

… reaffirmed?

This is pure speculation — the coin of the realm for at least another day — but if you’re at all familiar with major constitutional cases, I imagine that you probably filled in the word “overruled.” And for good reason — as far as I can tell, that’s the only word the Court has ever used to complete the phrase “should be and now is ….” My admittedly brief search has turned up seven examples, including such luminaries as Darby, Lopez, Seminole Tribe, Lawrence, and Citizens United. (A full list of cites is below the jump.)

Given the Court’s apparent proclivity for using the phrase in major, doctrine-altering constitutional decisions, it might well be making an appearance in the next 24 hours. While our collective thumb-twiddling reaches ever-higher rpm in the lead up to the health care decision, does anybody have an explanation for this odd locution? Does it ever pop up in any other context?

Cases including the phrase “should be and now is overruled”:

U.S. v. Darby, 312 U.S. 100, 117 (1941) (Stone, C.J.)

Graves v. Schmidlapp, 315 U.S. 657, 665 (1942) (Stone, C.J.)

U.S. v. Lopez, 514 U.S. 549, 631 (1995) (Breyer, J., dissenting) (quoting Darby, 312 U.S. at 116-17)

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 66 (1996) (Rehnquist, C.J.)

Lawrence v. Texas, 539 U.S. 558, 578 (2003) (Kennedy, J.)

Montejo v. Louisiana, 556 U.S. 778, 797 (2009) (Scalia, J.)

Citizens United v. Federal Election Comm’n, 130 S.Ct. 876, 913 (2010) (Kennedy, J.)

So far as I’ve found, no other case includes any variation on the phrase, but that’s just based on a quick Westlaw search.

This post should be and now is concluded. Happy hour should be and now is commenced.

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